of Newstar Computer Products Europa B.V., filed with the Chamber of Commerce under number 37076185
In these general terms and conditions, the terms are defined as stated below:
- "Buyer": the natural person and/or legal entity, acting in the exercise of a profession or business to which Newstar addresses its offers, to whom Newstar delivers or sells goods and/or provides services, and its representative(s), authorised representative(s), legal successors and/or heirs;
- "Newstar": Newstar Products Europe B.V., with offices at Wateringweg 62-B, 2031 EJ Haarlem, CoC 37076185, email@example.com
- “Agreement”: the agreement concluded by Newstar and the Buyer regarding the sale and/or delivery of goods and/or the provision of services governed by these general terms and conditions.
Article 2. General
- These general terms and conditions apply to all offers, quotations, legal relationships and agreements relating to the sale and/or delivery of goods and/or services by Newstar.
- The general terms and conditions also apply to other agreements, including follow-up and supplementary agreements, to which Newstar and the Buyer, or its legal successor(s), are a party.
- By placing an order, the Buyer declares to agree to these general terms and conditions.
- All images, specifications and/or information in offers and/or quotations of Newstar are an indication and cannot be a reason to claim compensation or termination of the Agreement.
- Offers and/or quotations from Newstar do not automatically apply to repeat orders.
- Newstar reserves the right to correct errors and/or clerical errors in offers and/or quotations. No liability is accepted for the consequences of errors and/or clerical errors. Newstar cannot be held to its offer if the offer and/or quotation or a part thereof contained an error or a clerical error.
- Third parties cannot derive any rights from information in offers, quotations, product brochures, drawings and/or price lists of Newstar.
- Any additional (verbal) agreements and/or promises made by or on behalf of Newstar are only binding if they have been explicitly confirmed in writing by Newstar.
- The applicability of any other terms and conditions used by the Buyer is hereby explicitly rejected.
- If any provision of these general terms and conditions is void or nullified, the other provisions of these general terms and conditions shall remain in full force.
- If the Buyer consists of more than one (legal) person, each of these (legal) persons is jointly and severally liable to Newstar for the obligations arising from the Agreement.
- Newstar reserves the right to amend or supplement these general terms and conditions.
- The Buyer is not entitled to transfer any right or obligation under the Agreement to third parties without written permission from Newstar.
- The Dutch text of these general terms and conditions prevails over any translation thereof.
Article 3. Quotations and formation of an agreement
- The Agreement is formed by a written order and/or assignment confirmation by Newstar, or by the fact that Newstar has commenced the provision of the service or the item. In the event of oral acceptance of an offer and/or quotation from Newstar by the Buyer, the Agreement will only be concluded if Newstar complies with the offer and/or quotation by actually commencing the execution thereof or by confirming the Agreement in writing.
- All offers and/or quotations made by Newstar are without obligation, unless Newstar explicitly indicates otherwise in writing. A written offer and/or quotation shall be valid for the period stated therein and, failing that, for a period of 31 (thirty-one) days.
- Insofar as the Buyer has delivered any performance or prepares for any performance in the apparent expectation that an Agreement will be concluded or based on the apparent assumption that an Agreement has been concluded, the Buyer will do so for its own risk and account.
- Newstar is authorized to perform the Agreement in several phases.
- Every Agreement is entered into under the suspensive condition of sufficient availability of the goods concerned.
Article 4. Delivery
- An agreed delivery date is a target date, unless otherwise agreed in writing. Newstar is only in default with regard to the delivery if it also fails to deliver within a reasonable further period set by the Buyer after the original delivery period. The reasonable further period shall be at least 3 (three) calendar months. If Newstar has not delivered within the reasonable further period, the Buyer is entitled to terminate the Agreement by registered letter for the part that has not been performed. In that case, the Buyer cannot claim compensation for damage, and Newstar is only obliged to refund that which has already been paid by the Buyer in respect of the part that has not been performed. The Buyer shall not be entitled to terminate the agreement if it has remained in default on its part.
- Newstar has the right to deliver the goods to be delivered in parts, which partial deliveries can be invoiced by Newstar separately.
- In the event of force majeure, and also if a delay has arisen as a result of acts or omissions by the Buyer or a third party, whether or not imputable, the delivery period shall be extended by at least the duration of the delay.
- Transport and delivery of goods shall take place in accordance with the Incoterms 2010 Ex Works, unless agreed otherwise in writing. As a result, delivery will take place at Newstar at the address Wateringweg 62-B, 2031 EJ in Haarlem. From the time when the goods are made available to the Buyer, his representative or the carrier appointed by Newstar or the Buyer, the delivered goods are for the account and risk of the Buyer, even if the ownership of the goods has not yet been transferred to the Buyer at such time. The goods are also for the account and risk of the Buyer if Newstar has offered the goods for delivery or has had them stored at the request of the Buyer, but the Buyer, its representative or the carrier appointed by Newstar or the Buyer, does not take delivery of the goods, for whatever reason. The costs and damage resulting from this, such as the costs of storage, custody and insurance, shall be entirely for the account of the Buyer.
- In those cases where it has been agreed that Newstar is responsible for the transport of the delivered item, the packaging and transport method shall be determined exclusively by Newstar, unless agreed otherwise in writing.
Article 5. Prices
- All prices (including rates) on the part of Newstar are in Euros and excluding VAT and other government charges. The VAT due will be charged separately to the Buyer. Insofar as Newstar has had to incur costs in connection with the delivery of the goods and/or services to the Buyer, such as transport costs, costs of storage, custody, disposal contributions and other (government) charges, etc., these costs shall be borne by the Buyer. Newstar is authorised to charge these costs separately to the Buyer.
- The prices agreed upon by Newstar with the Buyer can be increased after entering into the Agreement, if Newstar has been confronted with a price increase by its supplier for the fulfilment of its obligations under the Agreement, or if other price-increasing circumstances have occurred. If the price increase amounts to more than 15% of the invoice amount, the Buyer may terminate the Agreement in writing (exclusively) with regard to the goods increased in price, within 2 (two) working days after receipt of the notification of the price increase. In that case, the Buyer cannot claim compensation for damage, and Newstar is only obliged to refund that which has already been paid by the Buyer in respect of the part of the Agreement to which the termination relates.
- If the prices agreed in the Agreement are in any way linked to a price index and the price index decreases as a result of which the prices have to be adjusted downwards, Newstar has the right to terminate the Agreement. In that case, the Buyer will not be entitled to claim damages.
Article 6. Changes in the goods to be delivered
Newstar is entitled to deliver goods that deviate from the goods depicted in the catalogue in minor ways, such as but not limited to the colour. If Newstar delivers an item that differs substantially from the agreed item, the Buyer can terminate the Agreement (exclusively) with regard to the deviating goods in writing within 2 (two) working days after delivery. In that case, the Buyer cannot claim compensation for damage, and Newstar is only obliged to refund that which has already been paid by the Buyer in respect of the part of the Agreement to which the termination relates.
Article 7. Warranty and complaints
- The Buyer is obliged to inspect the delivered goods (or to have them inspected) immediately at the time of delivery. If it appears that the delivered item is incorrect, faulty or incomplete, the Buyer shall immediately report any visible defects or incorrectly delivered goods to Newstar in writing. Any non-visible defects can be reported to Newstar in writing not later than 5 (five) days after delivery. The foregoing applies on pain of forfeiture of the right to complain.
- Taking the delivered goods into use after detecting defects, damage caused after detecting defects, encumbrance and/or resale after detecting defects, will render the right to complain and return full y null and void.
- The warranty period on Newstar branded goods is 5 (five) years, starting from the time of delivery. Newstar is never responsible for the ultimate suitability of the delivered goods for each individual application by the Buyer, nor for any advice regarding the use or application of the delivered goods.
- Minor deviations in quality, colour, size etc. of the delivered item cannot constitute a ground for a complaint.
- Buyer's complaints with regard to Newstar branded goods shall be submitted to Newstar in writing by (registered) letter or by e-mail. In order to be regarded as a proper complaint, the complaint shall be accompanied by an appendix containing evidence of the purchase of the item concerned, stating the reason for the complaint and, insofar as possible, accompanied by evidence.
- Returns shall only take place after written permission from Newstar, and only in accordance with Newstar's instruction(s). Newstar reserves the right to refuse returns that are not offered in the prescribed manner. In such a case, the returned goods will not be processed and will be returned at the expense of the Buyer.
- If the Buyer's complaint with regard to a delivered item is well-founded and falls under the warranty scheme, Newstar will, at its discretion:
a) repair or replace the delivered goods or - if possible - the defective part (or have it repaired or replaced by a repairer to be designated by Newstar); or;
b) agree upon a written arrangement with the Buyer regarding compensation, on the understanding that the amount of the compensation shall always be limited to not more than the invoice amount of the (defective) goods concerned. However, in all cases Newstar is only liable within the limits of the provisions of Article 10 of these general terms and conditions.
- The warranty of the previous paragraph shall be cancelled in any case if:
a) the Buyer has repaired and/or modified the delivered goods himself or has had them repaired and/or modified by third parties;
b) the defects are the result of normal wear and tear;
c) the delivered goods have been exposed to abnormal circumstances or have otherwise been handled carelessly or contrary to Newstar's instructions and/or have been handled contrary to the labels of the goods and/or any other regulation;
d) the defect is fully or partly the result of regulations the government has or will set with regard to the nature or the quality of the materials used.
- Transport for replacement or repair shall be for the account and risk of the Buyer, unless agreed otherwise in writing.
- Failure by the Buyer to fulfil one or more of its obligations under the Agreement or these general terms and conditions shall release Newstar from all warranty obligations.
Article 8. Retention of title
- All goods delivered to the Buyer shall remain the property of Newstar until all the amounts payable by Buyer for the goods and/or related services delivered under the Agreement, as well as all the amounts due to any failure to pay, have been paid in full to Newstar. As long as the ownership of the delivered goods has not been transferred to the Buyer, the Buyer may not encumber the goods, transfer their ownership or grant third parties any other right to them, except as provided in the next paragraph.
- The Buyer may sell and/or deliver the goods delivered under retention of title in the context of the ordinary course of his business. The Buyer shall store the goods delivered subject to retention of title separately, with due care and as the recognisable property of Newstar, and also impose the obligation referred to above on third parties to which it has sold the goods delivered subject to retention of title.
- If the Buyer fails to comply with the provisions of the previous paragraph, it is assumed that the goods present of the type as delivered by Newstar belong to Newstar.
- If third parties wish to assert any right to the goods delivered under retention of title, for example by attachment, suspension of payment or in the event of bankruptcy, the Buyer shall immediately inform Newstar thereof.
- During the retention of title, the Buyer shall insure the delivered goods against the risk of fire and explosion, water damage and theft, the insurance policy of which can be requested and inspected by Newstar immediately on request.
- The Buyer shall immediately at the request of Newstar:
a) pledge and/or assign all the rights and/or claims of the Buyer on insurers with regard to the goods delivered under retention of title to Newstar in advance, all this at the discretion of Newstar, and;
b) pledge and/or assign the claims the Buyer acquires on its customers on account of the sale of goods delivered by Newstar under retention of title to Newstar in advance, all this at the discretion of Newstar;
- In each instance of default on the part of the Buyer - including the non-fulfilment of any obligation under these general terms and conditions - or if, in the opinion of Newstar there is a well-founded fear that the Buyer will not fulfil its obligations, Newstar will be entitled to take back the delivered goods or to have them taken away from the Buyer, or from third parties holding the goods for the Buyer, without any further notice. The Buyer shall fully cooperate with this, on pain of an immediately payable penalty of 10% of the amount owed by the Buyer at that time for each day its refusal to cooperate continues.
- The Buyer authorises Newstar and/or or grants Newstar permission in advance to enter its premises and buildings for the purpose of exercising its retention of title.
Article 9. Payment
- Payment shall be made within 10 (ten) days of the invoice date, unless agreed otherwise in writing. This period shall be regarded as a strict deadline, after which default shall commence by operation of law.
- In the event of non-payment or late payment by the Buyer, Newstar is entitled to suspend its obligations under the Agreement, and the Buyer shall, immediately and by operation of law, owe 8% interest of the invoice amount per month on the outstanding amount from the day on which payment should have been made to Newstar at the latest until the day on which payment is made in full, whereby a month that has commenced constitutes a full month. If the Buyer continues to fail to pay the claim, Newstar may pass on the claim for collection, in which case the Buyer, in addition to the amount and interest due at such time, shall also pay all the (actually incurred and full) extrajudicial and judicial (collection) costs, or pay a fixed compensation set at 15% of the relevant invoice amount, with a minimum of EUR 500.-. All this is at the discretion of Newstar.
- Where cashless payments are concerned, the time of payment is the date on which the amount is credited to Newstar's account.
- Payments will always be used to pay costs and interest due (in this order) and subsequently the principal amounts, whereby older outstanding amounts will take precedence over newer outstanding amounts.
- The Buyer is not permitted to invoke a right of suspension and/or retention or to apply any discount, deduction or set-off. The Buyer irrevocably and unconditionally waives this right.
- Newstar is authorised to send the invoice immediately after the offer and/or quotation has been approved by the Buyer, prior to the services and/or delivery of the goods, unless Newstar sends an interim invoice under Article 9.7 or if Newstar and the Buyer emphatically agree otherwise.
- Newstar is entitled to perform the Agreement in different phases, and to invoice the parts performed in this manner separately. In such as case, Newstar will send the invoice immediately after the relevant phase of the Agreement has been carried out or after the offer and/or quotation has been confirmed by the Buyer.
- Newstar is entitled to require full prepayment of the invoice amount in the event of an Agreement with the Buyer.
- If, in Newstar's reasonable opinion the Buyer's financial position gives cause to do so, the Buyer shall, immediately at Newstar's request provide Newstar with a bank guarantee and/or a letter of credit to cover the amount due, as (additional) security for the fulfilment of its payment obligations to Newstar. If the Buyer fails to comply with this, this constitutes an attributable shortcoming to Newstar and the latter will have the right to terminate the Agreement. Newstar will then be entitled to payment of the entire invoice amount, less the (direct) costs saved by Newstar as a result of the termination. In that case, the Buyer will not be able to claim compensation for damage. This provision also applies if credit has been negotiated.
- Complaints regarding the invoice shall be submitted to Newstar within 5 (five) working days of the invoice date, failing which the invoice will be deemed to have been approved.
Article 10 Liability
- The liability of Newstar - as well as its representatives and/or authorised representatives, employees and third parties engaged by Newstar - is always limited to the amount paid in the case concerned under Newstar's applicable (business) liability insurance, increased by the amount of the excess that is for Newstar's account under the applicable policy conditions. The amount insured by Newstar in respect of financial loss is currently € 2,500,000.00 per claim with a maximum of € 2,500,000.00 per year. If, for whatever reason, no payment is made under the insurance referred to above, Newstar's liability is always limited to the amount paid by the Buyer to Newstar in respect of the Agreement, or the part thereof in connection with which the liability has arisen, up to a maximum of € 2,500,000.00.
- Newstar is never liable for indirect damage, including but not limited to consequential damage (to persons or property), trading loss, loss of profit or income, lost savings and/or damage due to business interruption.
- Newstar is not liable for damage of whatever nature caused by or on behalf of Newstar by third parties and/or materials used by it.
- Newstar is not liable for damage of whatever nature caused by incorrect and/or incomplete data provided by or on behalf of the Buyer, or by persons or goods made available by the Buyer.
- In all cases where Newstar is entitled to invoke the provisions of this Article 10, any employee(s) and subcontractor(s) against whom legal action is taken may also invoke them as if the provisions of this Article 10 had been stipulated by the employee(s) and subcontractor(s) concerned.
Article 11. Indemnification
- The Buyer indemnifies Newstar against any and all possible claims of third parties in connection with the performance of the Agreement, more specifically claims of third parties in connection with goods and/or services delivered by Newstar to the Buyer, as a result of which such third party may have suffered damage, regardless of the nature, cause or time of occurrence.
- The Buyer shall assist Newstar - at the expense of the Buyer - both in and out of court if legal action is taken against Newstar by a third party as referred to in the previous paragraph, and the Buyer shall immediately do everything that may be expected of the Buyer in that case. If the Buyer fails to take adequate measures, Newstar will be entitled to do so itself, without any notice of default being required. Any and all costs incurred by Newstar as a result thereof shall be fully borne by the Buyer.
- The indemnifications of Newstar by the Buyer pursuant to these general terms and conditions shall apply in full to group companies of the Buyer.
- Before the Agreement is concluded, the Buyer shall take out sufficient business liability insurance, the insurance policy of which can be requested and inspected by Newstar immediately at its request.
Article 12. Force majeure
- In the event of force majeure, Newstar may suspend the fulfilment of its obligation under the Agreement or part thereof and the Buyer cannot claim fulfilment or compensation.
- The term force majeure is taken to mean any external cause, as well as any circumstance, which should not reasonably be at the risk of Newstar. Delays, negligence or non-performance on the part of Newstar's suppliers as well as on the part of auxiliary persons, internet failures, electricity failures, disruptions of e-mail traffic and failures or changes in technology supplied by third parties, transport difficulties, strikes, government measures, delays in supply, illness of personnel, defects in auxiliary means or means of transport explicitly constitute force majeure.
- In the event of force majeure, Newstar has the right to suspend its obligations under the Agreement and may also terminate the Agreement in whole or in part, or demand that the content of the Agreement be changed in such a way that performance remains possible. Under no circumstances will Newstar be obliged to pay any penalty or compensation.
- If, when the situation of force majeure commenced, Newstar has already fulfilled part of its obligations, or was only able to fulfil part of its obligations, it will be authorized to invoice the part already performed separately, and the contracting party shall pay this invoice as if it concerned a separate agreement. This does not apply, however if the part already delivered or to be delivered has no independent value.
Article 13.Intellectual property rights and confidentiality
- Newstar retains all intellectual absolute rights (including copyrights, patent rights, trademark rights, drawing and design rights etc.) to all its designs, drawings, writings, carriers with data or other information, quotations, images, sketches, models, etc., unless agreed otherwise in writing.
- Without the explicit written permission of Newstar, the rights referred to in the previous paragraph may not be copied, shown and/or made available to third parties or used in any other way than the manner of use as agreed with Newstar and/or for a purpose other than that for which they were given into use or delivered.
- The Buyer shall keep confidential all confidential information made available by Newstar to the Buyer or to any of its subordinates. The term confidential information shall in any case include that to which the provisions of the first paragraph relate, as well as Newstar's business data.
Article 14. Periods of limitation/due dates
Contrary to the statutory limitation periods, the limitation period for all claims and defences of the Buyer against Newstar is 6 (six) months from the date on which such claims and defences arose.
Article 15. Termination of the Agreement
If the Buyer is in default with regard to any obligation under the Agreement or these general terms and conditions, or if the Buyer has filed (or applied) for bankruptcy, suspension of payments, debt restructuring under the Debt Restructuring (Natural Persons) Act, incapacity for work, strikes, seizure, (business) takeover and/or merger, or death, all the claims of Newstar on the Buyer will become immediately due and payable and Newstar will have the right to terminate the Agreement in writing. At such time Newstar will be entitled to payment of the entire invoice amount, less the (direct) costs saved by Newstar as a result of the termination. In such a case, the Buyer will not be able to claim compensation for damage.
Article 16. Applicable law and disputes
- Any and all agreements to which these terms and conditions apply fully or in part are governed by Dutch law. The applicability of the 1980 United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention/CISG) is explicitly excluded.
- Any disputes relating to or arising from this Agreement shall be submitted to the competent court in Haarlem, unless Newstar prefers to submit the dispute to the competent court in the Buyer's place of residence.